Pipeline approval process was fair, challenges should be tossed: lawyer

Lawyers for the federal government said it conducted a new round of consultations with Indigenous groups about the Trans Mountain Pipeline expansion that was reasonable, adequate and fair.

Jan Brongers began arguments on behalf of the government Tuesday, asking the Federal Court of Appeal to toss out legal challenges to the approval of the project for the second time.

The court has heard from four Indigenous groups in B.C. that said the government once again failed in its duty to hold meaningful dialogue about the project during consultations conducted between August 2018 and June 2019.

“The shortcomings of the earlier process were not repeated and therefore these four applications should be dismissed,” Brongers told a three-judge panel in Vancouver.

The federal government launched the new round of discussions after the same court cited inadequate consultation with Indigenous groups in its decision to quash the initial approval of the Trans Mountain Pipeline expansion in August 2018.

Brongers told the court the government deliberately set up a system for addressing the specific concerns of those Indigenous groups and then went beyond it by opening the consultation to all 129 groups that have been identified as being affected by the project. He said the government’s response included a review of broad concerns, but also covered specific fears about the effect on the Salish Sea and increased vessel noise on individual communities. They went beyond just listening to and recording the concerns of affected Indigenous communities, Brongers told the court.

The Crown has also proven it was prepared to alter its proposed actions based on insight obtained through those consultations, he said. Significantly, when the government issued its second approval of the project, six of the National Energy Board’s 156 recommended conditions had been amended to address particular Indigenous concerns, he noted.

“It marked the first time the governor in council has ever exercised its power to exercise its own conditions on a pipeline in order to accommodate Indigenous Peoples.”

Prime Minister Justin Trudeau’s government has twice approved a plan to triple the capacity of the pipeline from Alberta’s oilsands to a shipping terminal in Metro Vancouver.

A three-day hearing is underway to consider challenges launched by the Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a coalition of small First Nations in the Fraser Valley.

Several First Nations, environmental groups and the City of Vancouver had originally filed challenges, making a range of arguments including that the project threatened southern resident killer whales.